Appeal No. 95-4004
Application 07/858,171
sphingomyelin (SPM), and the like, alone or in combination.
The phospholipids can be synthetic or derived from natural
sources such as egg or soy. Useful synthetic phospholipids
are dymyristoylphosphatidylcholine [sic](DMPC) and
dimyristoylphosphatidylglycerol (DMPG). The liposomes can
also contain other steroid components such as polyethylene
glycol derivatives of cholesterol (PEG-cholesterols),
coprostanol, cholestanol, or cholestane, and combinations
of PC and cholesterol. They may also contain organic acid
derivatives of sterols such as cholesterol hemisuccinate
(CHS), and the like.
While Popescu describes “polyethylene glycol derivatives of
cholesterol (PEG-cholesterols), coprostanol, cholestanol, or
cholestane, and combinations of PC and cholesterol” (Popescu,
column 4, lines 7-9), Popescu nowhere teaches or reasonably
suggests the use of diacyl-chain amphipathic vesicle-forming
lipids derivatized with polyethylene glycol as per Claim 1 of
this appeal. The examiner finds that “PEG-cholesterolos [sic,
cholesterols]” are part of “the instant invention (page 13,
lines 19-26)” (Examiner’s Answer, page 3). We hold that a
finding that PEG-cholesterol is a “diacyl-chain amphipathic
vesicle-forming lipid derivatized with polyethylene glycol” is
clearly erroneous. We hold that PEG-cholesterols are not within
the scope of the method appellants claim.
The examiner’s reference to page 13, lines 19-26, of
appellants’ specification does not support the final rejection.
The specification teaches (Specification, page 13, lines 16-31):
The vesicle-forming lipid is preferably one having two
hydrocarbon chains, typically acyl chains, and a polar
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